Labeling Israel an apartheid state is part of a larger strategy of political warfare that includes NGO boycott, divestment, and sanctions (BDS) campaigns and “lawfare” cases against Israelis. It is the latest manifestation of the 1975 UN “Zionism is racism” resolution and the 2001 Durban Conference NGO Forum declaration.

The only internationally recognized case of apartheid was in South Africa. Customary law is based therefore on those practices that were unique in apartheid South Africa. Since Israel does not share these practices, it cannot be defined as an apartheid state under international law.

Many NGOs falsely portray the Arab-Israeli conflict as a dispute motivated by alleged Jewish race-hatred of Arabs, rather than one based on competing national and territorial claims.

A significant portion of the organizations involved in apartheid based demonization receive substantial funds from the European Union, European governments, New Israel Fund (NIF), Ford Foundation, and George Soros’ Open Society Institute.

NIF’s funding of such organizations is entirely inconsistent with a March 2010 statement by CEO Daniel Sokatch, that “apartheid” is “a historically inaccurate and inflammatory term that serves only to demonize Israel and alienate a majority of Jews around the world.”

NGOs charging “apartheid” omit the context of terrorism in order to falsely frame counter-terror measures. International law specifically allows for rights restrictions as necessary to balance security needs and humanitarian considerations.

Under international law, countries have the right to set citizenship and entry criteria. Such conditions are enacted by every state in the world and are not the equivalent of apartheid.

Some “Israeli apartheid” activists benefit from the open and democratic nature of Israeli society. Omar Barghouti of PCABI is a PhD student at Tel Aviv University. Adalah, which participated in an Israeli Apartheid Week event “on Apartheid as it is experienced by Palestinian citizens of Israel,” has direct and repeated access to Israeli courts and policy-makers through dozens of court petitions and regular appearances at Knesset hearings.

NGOs routinely ignore practices in the Arab and Muslim world that more closely resemble the practices of apartheid South Africa, such as legally mandated gender and religious discrimination in Saudi Arabia.

Introduction

1At the NGO Forum of the 2001 UN Durban Conference, 1500 NGOs issued a resolution declaring Israel to be “a racist, apartheid state” and labeling“Israel’s brand of apartheid as a crime against humanity.” These NGOs called upon the “international community to impose a policy of complete and total isolation of Israel as an apartheid state…” and demanded the “establishment of a war crimes tribunal” to “bring to justice those who may be guilty of . . . the crime of Apartheid . . .”

The strategy of transforming Israel into a pariah state by linking it to apartheid South Africa is the latest incarnation of the campaign that produced the 1975 UN General Assembly declaration that “Zionism is racism.” Although the bigoted declaration was repealed in 1991, NGOs claiming to promote universal human rights resuscitated both the tactic and the canard at the Durban conference in order to delegitimize Jewish self-determination rights. Labeling Israel an apartheid state is part of a larger campaign of political warfare that includes NGO boycott, divestment, and sanctions (BDS) iniatives and “lawfare” cases against Israelis. The apartheid label is intellectually empty, legally false, and another example of how many NGOs adopting the mantle of human rights adopt lofty-sounding rhetoric in the service of indefensible and morally questionable aims. The singling out of Israel as an “apartheid state” is a form of incitement and in itself may be an expression of racism. 2

Background: The Apartheid System in South Africa

Between 1948 and 1994, the South African Afrikaner National Party, representing a minority white population, imposed a system of “unprecedented racial reordering” over the nonwhite majority population known as “apartheid” (separateness). The movement was predicated on “white superiority” and mandated the complete legal and de facto separation of racial groups in all aspects of South African society. The body of laws comprising the apartheid legal code included such legislation as the Reservation of Separate Amenities Act; Act No. 49 of 1953, which demanded racial segregation in all public amenities, public buildings, and public transport; and the Bantu Homelands Citizens Act of 1970, which stripped all blacks of South African citizenship, while assigning them Bantu citizenship. Apartheid legislation reached into every aspect of life: the law demanded separate (and inferior) hospitals, cemeteries, toilets, elevators, government services, buses, restaurants, parks, beaches, etc… (see photo examples) and disenfranchisement of the nonwhite population. Integrated cities were forcibly segregated, and nonwhites were deported to outlying areas. Interracial marriages and extramarital relations, were criminalized. The country was divided into “white territory” and nine “tribal ‘homelands’” for non-whites called Bantustans. In addition, the government imposed a racial identity on ethnic groups, “disallowing people to choose their own identity,” and stripping citizens of the right to vote for representation outside their ethnic groups. Freedom of the press, speech, and association was also severely restricted.3

Background on Israeli Society

In contrast, Israel is in no way comparable to apartheid South Africa. There is no rule of a racial minority over another racial majority. The Israeli Jewish population comprises peoples from many nationalities and ethnicities. Equal protection is guaranteed by law.4 Arabs, who comprise approximately 20% of the Israeli population, are full citizens and have the right to vote. Arab parties5 hold 11 Knesset seats6 and several Arab MKs represent the Kadima, Yisrael Beiteinu, and Likud parties. Arabs serve as judges in the Israeli court system, including an Arab member of the Israeli Supreme Court. Arabs serve as high-ranking officers in the Israeli army, and as government ministers, ambassadors, and civil service workers. Arabs are integrated into all aspects of Israeli society.7 Public facilities such as hospitals, buses, courts and restaurants are open to all, irrespective of race and ethnicity. There is no law requiring discrimination as there was in South Africa. Despite their deliberate rejection of Israeli citizenship on political grounds, East Jerusalem Palestinians are considered permanent residents who can vote in municipal elections, receive full health and social benefits, gain employment in civil service, enroll in Israeli universities, purchase property and travel freely throughout Israel. Many East Jerusalem Palestinians are now applying for Israeli citizenship.8

In the West Bank, Palestinians are under the jurisdiction of the Palestinian Authority as per a series of negotiated agreements between the Palestine Liberation Organization and the Israeli government (the Oslo Accords). The Palestinians Authority has its own government, parliament, ministries, diplomatic representatives, social services, courts, police force, etc. Unlike the Bantu policy of the South African government, the autonomy arrangements in the West Bank were fully voluntary, arrived at by negotiation between the state of Israel and the internationally recognized “sole representative” of the Palestinian people, and achieved without prejudice to the Arab citizens of Israel. No Israeli-Arab citizens were forced to become residents or citizens of the Palestinian Authority; indeed, in the wake of the Oslo Accords, large numbers of Palestinian residents of the West Bank moved to Israel, many assuming Israeli citizenship. And unlike the Bantu policy, the Oslo Accords were internationally endorsed.

Under the Oslo Accords, and as agreed to by the Palestinian leadership, Israel retains certain powers in the West Bank, primarily overarching security control and territorial jurisdiction over areas without significant Palestinian population. To be sure, Israel’s security control means that Palestinians involved in terrorist activities against Israelis, may be subject to the Israeli military court system. However, more than 95% of the Palestinian population is under the jurisdiction of the PA. Notably, Palestinians also have the ability to challenge Israeli policies directly to the Israeli Supreme Court without any standing or other justiciability limitations.

In Gaza, Israel lacks even the limited set of powers preserved for it in the West Bank. After an Israeli withdrawal in 2005 and a takeover by the Hamas terrorist organization in 2007, the Palestinian population of Gaza is solely governed by Hamas with the financial assistance of the West Bank Palestinian Authority. Since the 2005 withdrawal, Israel lacks even a physical presence within Gaza.9

Legal Prohibition of Apartheid

There is no accepted definition of apartheid in international law. While there are several treaty definitions, they are controversial, and do not legally bind Israel which is not a state party to those treaties. Moreover, while South African apartheid was widely viewed as illegal under international law, in no other case has a country ever been found by any tribunal applying international law to have been engaged in apartheid.

Customary Law

The customary law of apartheid—the only law that can bind Israel aside from the specific treaties to which it is part—is based on international practice regarding apartheid. Racial discrimination is, of course, morally abhorrent, but it is common knowledge that there are few if any human societies that can rightly claim to be completely free of this scourge. The mere presence within a society of racists or even acts of racial discrimination does not, of itself, establish that a state is engaging in apartheid. Indeed, if such acts rendered a state apartheid, every country in the world would be so labeled.

Likewise, it is clear that the mere drawing of distinctions between citizens and non-citizens, or offering preferences in immigration to some groups, or accommodating cultural differences by law, do not rise to the level of apartheid without again making every country in the world an apartheid state.

Indeed, since the only internationally recognized case of apartheid was in South Africa, the customary law of apartheid is based on those practices that were unique to South Africa under its apartheid regime. Since Israel does not share these practices, it cannot be defined as an apartheid state under international law. Importantly, there are several states in the world, most notably those states responsible for the “Zionism is racism” campaign, whose laws and practices are much closer to apartheid South Africa.

Treaty Law

ICERD

Article 3 of the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) states:

States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.

The ICERD does not provide a definition of “apartheid” but the chapeau of the treaty refers to apartheid as “governmental policies based on racial superiority or hatred.”

Importantly, Article 1.2 of the treaty states that it “shall not apply to distinctions, exclusions, restrictions or preferences made by a State party to this Convention between citizens and non-citizens.”

ICERD Article 1.3 mandates that it shall not “be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.”

Article 1.4 allows for “special measures” to be taken for the purpose of “advancement of certain racial or ethnic groups…requiring such protection as may be necessary in order to ensure… equal enjoyment or exercise of human rights and fundamental freedoms.” Such measures are not considered “racial discrimination.”

In Article 5b, State parties undertake to “guarantee” the right of “security of person and protection…against violence or bodily harm, whether inflicted by government officials or by any individual group or institution.”

Israel has ratified the ICERD and participates in the periodic review process under the auspices of the UN Committee on the Elimination of Racial Discrimination.

Apartheid Convention

In the 1970s, the Soviet Union, backed by the Islamic bloc and the non-aligned movement, drafted the International Convention on the Suppression and Punishment of the Crime of Apartheid. This instrument attempted to define apartheid so broadly as to apply to all Western states:

For the purpose of the present Convention, the term ‘the crime of apartheid’, which shall include similar policies and practices of racial segregation and discrimination as practised in southern Africa, shall apply to the following inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them:10

As a result of the politicization of this treaty as a Cold War tactic by the Soviet Union, no Western governments have become a party to it. Indeed, there were attempts to tie this treaty to the UN General Assembly “Zionism is racism” declaration.11 Israel, therefore, is obviously not a party to the treaty.

Rome Statute

The treaty for the International Criminal Court (Rome Statute) also addresses apartheid and defines it as a “crime against humanity”:

(h) ‘The crime of apartheid’ means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;12

“Inhumane acts” are described as those “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” including “extermination,” “enslavement,” “deportation,” “torture” and “sexual slavery.”

Again, due to the politicization injected into the process by the Organization of the Islamic Conference and the Arab League,13 Israel is not a party to the Rome Statute; therefore, it is not legally binding upon Israel.

Incidentally, there have been no prosecutions for apartheid before the International Criminal Court, notwithstanding a number of prosecutions of crimes against humanity in Darfur.

NGOs Manufacture Charges of Apartheid to Advance Political Goals

Despite the manifest differences between the one legally acknowledged apartheid state—South Africa—and Israel, and the absence of any Israeli legal regime based on systematic “racial superiority or hatred” or “domination by one racial group over another,” several NGOs claiming to promote human rights or humanitarian objectives falsely accuse Israel of apartheid. These charges take several forms, including: 1) gratuitous use of apartheid rhetoric; 2) characterizing the Arab-Israeli conflict as motivated by alleged Jewish race-hatred of Arabs, rather than one based on competing national and territorial claims, while also disregarding the role of Arab bigotry; 3) ignoring the context of terror; 4) claiming all alleged violations of human rights and humanitarian law rise to the level of “apartheid,” albeit only if committed by Israel; 5) hypocritically accusing Israel of “apartheid” while actively participating in the political process and enjoying the benefits conferred by the state; and 6) ignoring practices in Arab and Muslim countries that more closely resemble apartheid South Africa.

A significant portion of the organizations involved in the exploitation of apartheid rhetoric receive substantial funding from the European Union, European governments, the Ford Foundation, and George Soros’ Open Society Institute.

Many of the NGOs invoking apartheid rhetoric also receive substantial funding from the New Israel Fund (examples below). Such funding is clearly inconsistent with a March 2010 statement by NIF CEO Daniel Sokatch, claiming that NIF “deeply disagree[s] with the use of ‘apartheid’ in the Israeli context. It is a historically inaccurate and inflammatory term that serves only to demonize Israel and alienate a majority of Jews around the world, including those who care deeply about issues of democracy, human rights, social justice and peace.” NGO Monitor reiterates the urgent need for NIF to establish red lines regarding its funding practices and to implement them immediately.

1. Gratuitous use of apartheid rhetoric

Former South African dissident Benjamin Pogrund has remarked that the term “apartheid” is used “because it comes easily to hand: it is a lazy label for the complexities of the Middle East conflict.” Many NGOs employ apartheid rhetoric in order to create an association between the Jewish state and the apartheid regime in South Africa in order to promote ideological agendas, to bolster economic sanctions campaigns directed against Israel (BDS), or even to lead to the dismantling of the state.

The same process is seen in the exploitation of international legal terminology such as “ethnic cleansing,” “genocide,” or “crimes against humanity,” and in “lawfare” cases where lawsuits are filed against Israelis for their PR value and to link the concept of “war crimes” with Israel.

Apartheid has symbolic value because of the South African context . . . I think the word apartheid is useful for mobilizing people because of its emotional power. In some cases, the situation in the West Bank is worse than apartheid in South Africa. (emphasis added)

Once again, Europe has decided punish the victim, the Palestinian people, and to gift Israel’s apartheid regime… Europe’s decision to upgrade its relations with the state of Israel and to award its apartheid regime is unsurprising… Today, what remains of the communist parties adjusts to Islamophobic Europe and hesitates on Israel’s apartheid.

…in Hebron there is “a reality of apartheid and a kind of ‘ethnic cleansing.’

2. Transforming a territorial and political dispute into a “racial” conflict

A second approach taken by NGOs is to portray the Arab-Israeli conflict as a dispute motivated by Jewish race-hatred of Arabs rather than one based on competing national and territorial claims. NGOs adopting this tactic allege Israeli policies are motivated by racial animus and intended to enforce “Jewish superiority.” These organizations often falsely claim Israel imposes segregation laws between Jews and Palestinians in the West Bank, and attempt to erase or deny Jewish history in the region employing PLO terms such as “colonization” or “Judaization.”

Similarly, these organizations disparage Israel’s adoption of Jewish symbols and its “law of return” as “racist.” Although many countries have official religions (UK, Norway, Greece, Argentina, Saudi Arabia, Egypt, Iran, Jordan, Iraq, Thailand, etc.) and employ religious or ethno-religious symbols on their flags (Sweden, Switzerland, Denmark, Iraq etc.), only Israel is branded as an “apartheid” or “racist” state. But as Israeli Supreme Court President Dorit Benisch explains, “apartheid consists of a policy of racial segregation and discrimination on racial and ethno-national grounds, which takes the form of numerous discriminatory practices whose purpose is to establish the supremacy of one racial group, and to repress other racial groups . . . Not every distinction between people, in all circumstances, necessarily constitutes illegitimate discrimination, and not every case of illegitimate discrimination is apartheid.”

. . . this process of accelerated Judaization and Israelization in East Jerusalem, . . . is part of an effort to change the existing discourse. . . of which the Muslim Quarter becomes “the renewed Jewish Quarter,” the Old City and the Holy Basin become “ancient Jerusalem”. . .

PCHR highly appreciated . . . support for the Palestinian people and their just cause and in condemnation of IOF’s [Israeli Occupation Force’s] crimes and practices, including the siege and Judaization.

The PLO developed the terms “Judaization” and “Israelization” to erase the Jewish historical connection to the region, as well as to suggest that the very presence of Jews is alien and unacceptable. The use of the term Judaization, therefore, is an expression of anti-Jewish racism. While it is perhaps not surprising that the PLO would employ such terminology, it is immoral for human rights organizations to use phrases supporting ethnically-based exclusion.

Israel’s settlement policy in the OPT is characterized by discrimination on grounds of nationality, ethnicity and religion. Settlements are for Jews only. . .

The political debate on settlements is a central issue in Israeli society. However, it is false to portray it as a racial issue. The settlement population comprises residents of all nationalities, ethnicities, and religions, including Arabs and Muslims.

[O]nly one nationality has standing or rights and only one is associated with the state . . .

* Joint NGO Submission to the UN Committee on the Elimination of Racial Discrimination including Al Mezan, Al Haq, Ittijah, ICAHD, Defence for Children International-Palestine Section)

[The] “Law of Citizenship”…ensures special rights and privileges conveyed only to “Jewish nationals,” and provide the institutional basis for material discrimination against the indigenous Palestinian Arab people in all areas under Israel’s jurisdiction and effective control.

All citizens in Israel enjoy equal rights and there are no racial and ethnic restrictions on the ability to acquire Israeli citizenship. Israel’s “law of return” grants a special track to Jews seeking to acquire citizenship; in providing this preference, Israel does not differ from countries such as Germany and Ireland. Notwithstanding this special track, Israeli law does not distinguish between citizens on the basis of the origin of their citizenship. “Returning” citizens enjoy no preferences over any other citizens. Nothing in the law of citizenship discriminates against Israeli citizens of Palestinian Arab origin.

Moreover, the law of return was enacted to provide a safe haven for Jews who for centuries have suffered persecution around the world. Jews, no less than other national groups, enjoy the right of self-determination recognized in the UN Charter and other treaties. Indeed, Jewish self-determination was specifically recognized and legally grounded in the 1922 Palestine Articles of Mandate issued by the League of Nations. Thus, as noted by legal scholar, Robbie Sabel, “Zionism is perhaps the only national movement that has received explicit support and endorsement both from the League of Nations and from the United Nations.”

Additionally, the ICERD legally mandates the establishment of “special measures” for the “advancement of certain racial or ethnic groups” for protecting the “equal enjoyment or exercise of human rights and fundamental freedoms.” As noted by the UN Committee for the ICERD, this provision is intended to remedy “ inequalities resulting from the circumstances of history that continue to deny to vulnerable groups and individuals the advantages essential for the full development of the human personality” and to “prevent[] further imbalances from arising.” The “law of return” is such a measure.

3. Ignoring the Context of Terrorism

NGOs charging “apartheid” invariably omit the context of terrorism, in order to falsely frame counter-terror measures as motivated by racial hatred.

The Arab-Israeli conflict is defined by Palestinian terrorism

In addition to the vast gap between Israeli practices and those of apartheid South Africa, there is another defining difference between the situations: the Palestinian campaign of terrorism and incitement to genocide, in service of an openly stated goal of eliminating the state of Israel.14 As noted by Anthony Julius and Simon Schama, “since the 1920s, a substantial component of the Palestinian war against the Jewish community has been terrorism, that is, the intentional harming of civilians. The second intifada consisted of nothing more than terrorism.” Hamas, Hezbollah and their patron, Iran, are actively engaged in antisemitic incitement rejecting any political compromise with Israel.

Measures deemed “apartheid” by human rights NGOs are, in fact, temporary and legal measures put in place in the wake of the vicious Palestinian campaign of suicide bombings and shootings targeting restaurants, malls, Jewish religious celebrations, and buses that have killed and wounded thousands of Israelis. Assaults and attempts on Israeli civilians occur on an almost daily basis. Former President of the Israel Supreme Court, Aharon Barak notes that “up until mid July 2005, almost one thousand attacks have been carried out within Israel. In Judea and Samaria, 9000 attacks have been carried out. Thousands of attacks have been carried out in the Gaza Strip.” Thousands more have occurred since July 2005.

Rights are not absolute under international law

International law directly contemplates restrictions on rights for the purpose of “control and security” (Fourth Geneva Convention, Art. 27); for “public order and safety” (Hague Convention, Art. 43); to protect “in time of public emergency which threatens the life of the nation” (ICCPR15 Art. 4); and for “national security, public order, public health or morals or the rights and freedoms of others,” (ICCPR Arts. 12, 14, 18, 21, 22, ICESCR16 Art. 8 ).

Moreover, many situations involve competing rights and claims. When two sets of rights are in conflict, it is up to the courts to balance these claims and ensure that enacted measures are proportional to the harm imposed.17 In US jurisprudence, for instance, laws making distinctions on the basis of race, religion, or nationality may be permissible in the face of a “compelling government interest.”18 In Israel, the courts recognize that “proportionality plays a central role in the law regarding armed conflict…there is frequently a need to balance between military needs and humanitarian considerations.”19

Ultimately, Israeli counter-terror restrictions are enacted to protect the most fundamental right of all – the right to life. Other rights such as the “right to work” or the “right to take part in one’s culture” do not take precedence.

Should the Palestinians decide to cease attacks and enter into a negotiated solution to the Arab-Israeli conflict, implemented counter-terror measures can be reversed. Indeed, as the security situation has improved, the Israeli military has removed checkpoints and roadblocks in the West Bank.

NGOs claim Palestinians have a “right to resist” counter-terror measure

Security for the state of Israel is conflated with the security of state institutions that fund, enforce and implement the system of domination over Palestinians. Consequently, Palestinian resistance to the policies, practices, and institutions that enforce this system is treated as threats to state security.

These NGOs deny the reality of Palestinian terror attacks on civilians. They charge that because Israel is an alleged “apartheid” regime, Palestinians have a “right to resist” any imposed counter-terror measures since they are supposedly enacted for the purpose of maintaining racial dominance.20 These claims are immoral and factually as well as legally false. As detailed in NGO Monitor’s report analyzing the law of self defense, the “right to self determination,” does not grant a right to engage in illegal aggression or erase the unequivocal rights of states to protect themselves from attack against their territory or their citizens.

This segregation is manifest through the network of separate roads for the exclusive use of Israeli settlers . . . In creating a kind of ‘road apartheid’, this segregated highway system goes beyond apartheid practices in South Africa . . .

...[movement] restrictions are imposed on all Palestinians – because they are Palestinians.

These claims are patently false. There are a few roads that have been closed to some Palestinian traffic due to the repeated shootings, bombings, and other attacks on travelers, but they are not designated for the “exclusive use” of “settlers” or “Jews.” Importantly, these road closures are temporary and subject to review by the Israeli courts. In the past six months, the Israeli Supreme Court has ordered the opening of two such roads to Palestinian traffic.21

Israeli Supreme Court Justice Dorit Benisch notes,

We must be careful and cautious about using definitions which characterize security measures taken for the purposes of protecting travelers on the roads as being based on illegitimate racial and ethno-national foundations. The comparison which the applicants made between the use of separate roads for security purposes and the policy and practices of Apartheid South Africa is inappropriate . . . The great distance between the security measures which the state of Israel is taking as protection from terror attacks, and the illegitimate practices of Apartheid, require that all comparison or usage of the grave term be avoided . . . the comparison between the prevention of Palestinians traffic on route 443 to the crime of apartheid is extreme and exaggerated to the point where it should never have been raised.

It should also be noted that these organizations do not condemn separate roads for Muslims and non-Muslims in Saudi Arabia (see photo example below) nor do they label the practice “apartheid.” This silence evidences the singling out of Israel by these organizations in furtherance of their political aims.

Allowing Israelis to live with their heart’s desire inside the country – unless the object of their affections is a resident of the Occupied Territories – is racist and violates the principle of equality.

The Citizenship and Entry Law was passed on July 31, 2003 temporarily placing limits on granting citizenship to residents of the Palestinian Authority. The law also applies to citizens of Iraq, Iran, Lebanon and Syria, nations that are at war with Israel. It was enacted not for discriminatory purposes but rather, because of persons “who were granted legal status in Israel based on their marriage to an Israeli citizen, and took advantage of their Israeli ID to pass checkpoints and carry into Israel either suicide bombers or explosives.”

The temporary law was adopted following a wave of attacks in March 2002 that killed 135 Israelis and injured more than 700. Prior to the amendments Twenty-three terrorist attacks, including a March 2002 suicide bombing in Haifa that killed 15, resulted from an abuse of the prior law, and 86% of all terror injuries occurred in attacks where this law was exploited. Nothing in the amended law prevents an Israeli/Palestinian couple from “living with their heart’s desire” in the West Bank. Moreover, the law contains exceptions for humanitarian reasons such as medical cases or for family reunification. Temporary residence permits may also be granted. Decisions based on the law are appealable to the Israeli Supreme Court.

Under international law, countries have the right to set conditions for entry. And such conditions can be made based on the nationality of those who seek to enter. Indeed, the US has a preferred visa program where nationals of particular countries may visit the US without going through the full visa procedures. As noted, the ICERD (Art. 1.2) specifically mentions that distinctions made between citizens and noncitizens do not constitute racial discrimination.

In addition, most countries do not grant automatic citizenship or even residency rights to non-nationals as a result of marriage to a citizen. The “right to family life”23 does not, as claimed by NGOs, include the right to automatic citizenship or the right to live in a particular country. Moreover, it does not trump higher order rights such as the right to life. There is in fact, no principle in international law for married persons to be able to live in whichever country they choose. All the more so, when a significant number of those seeking citizenship either committed or were involved in terror attacks against civilians or when they are nationals of states who are at war with that country.

The Israeli government favors the Apartheid Wall because it furthers its agenda, policies, and actions of expelling the indigenous Palestinians for the colonization of land and “resettlement” of Jewish communities in “Greater Israel”.

The seam area [area between the Green Line and the security barrier] regime creates a clear separation between Israelis and holders of Israeli visas and Palestinians from the Territories and as such, constitutes the crime of apartheid.

We took former Pink Floyd member Roger Waters to Bethlehem, and helped him graffiti Israel’s apartheid wall near Abu Dis.

Contrary to these statements, Israel’s security barrier separates primarily between Israeli citizens and non-citizens, not between races or ethnic groups. On the Israeli side of the barrier live Israeli citizens of all races and nationalities, including Israel’s 20% Arab population. The population living on the Palestinian side of the barrier is also mixed Arab and Jewish.

Prior to the barrier’s construction which began in 2003, the Israeli civilian population was subject to a ruthless campaign of suicide bombings targeting buses, restaurants, Jewish religious celebrations and other public gatherings that killed and injured thousands. The barrier’s purpose was to prevent further such attacks and has been overwhelmingly successful.

Under the laws of armed conflict and human rights law, Israel is legally allowed to construct a barrier for “control and security” and for “national security,” “public order,” or to protect the “rights and freedoms of others” including the “right to life.” It is indisputable that since the barrier’s construction, suicide bombings in Israel have dropped by more than 95%, resulting in the saving of hundreds of lives.25 The Israeli Supreme Court has reviewed the route of the barrier as well as its impact on Palestinians in more than 100 cases26 and has ordered changes where its impact was viewed as disproportional to the security benefit gained. This is not apartheid.

4. Claiming that all alleged violations of international humanitarian or human rights law constitute “apartheid”

NGOs promoting the “Israel is apartheid” canard issue laundry lists or conclusory allegations of violations of international human rights or humanitarian law to underpin charges of “apartheid” even though there is no evidence of racial animus. Again, as explained by Israel Supreme Court President Dorit Benisch, “not every distinction between people…necessarily constitutes illegitimate discrimination, and not every case of illegitimate discrimination is apartheid. The very usage of the term ‘Apartheid’ in this context appears to lessen the extreme gravity of this crime, which the entire international community joined forces to eradicate, and which we all utterly reject.”

Adalah/Al Haq challenge the “legality” of Israel’s “regime”

One of the most egregious examples of this approach is a 2009 publication, “Occupation, Colonialism, Apartheid?: A Re-assessment of Israel’s Practices in the Occupied Palestinian Territories under International Law,” by NIF- and European-funded Adalah and European-funded Al Haq. The 302-page report, intended to challenge the “legality” of the Israeli “regime”, was conceived by anti-Israel ideologue, John Dugard. Daphna Golan, co-founder of B’Tselem, and Michael Sfard, legal advisor for Yesh Din and Breaking the Silence, and leading advocate of “lawfare” were listed as “consultants” on the report.27

The publication declares Israel guilty of “colonialism” and “apartheid” and purports to catalogue Israel’s “violations” supporting a charge of apartheid. These include interfering with the Palestinian “self determination unit,” “suppressing Palestinian culture,” implementing a “Grand Apartheid” policy by placing Palestinians in “reserves and ghettoes,” and violating the so-called Palestinian “right of return.”

Adalah and Al Haq further claim Israel engages in the “extrajudicial, summary or arbitrary execution of Palestinians opposing Israel’s regime of occupation designated for so doing as ‘terrorists’” and repeat allegations by the Arab League that Israel “satisfied the actus reus” for genocide during the Gaza War. They claim Israel is in violation of the 1976 Apartheid Convention by “targeting and closure of charitable, educational and cultural organisations suspected of affiliation with Hamas.”

Adalah and Al Haq conclude that Israel’s “occupation” of the West Bank is intended to racially dominate Palestinians and as such Palestinians have a so-called “right to resist.” They further claim all states have a legal obligation “not to render themselves complicit in the internationally wrongful acts in question” and call for all states to “request an advisory opinion from the International Court of Justice regarding Israel’s practices of apartheid and colonialism.”28

The Adalah/Al Haq report engages in an expansive distortion of international law. The publication advocates imposing tens of new legal obligations on Israel based on laws that are not applicable to Israel. In addition, many of the alleged violations are not international crimes in and of themselves29 and without more, cannot serve as the basis of criminal conduct or constitute “apartheid”:

The study relies on provisions from the politicized Soviet-backed apartheid treaty and the ICC’s Rome Statute. Neither of these treaties is legally binding on Israel. Regardless, both treaties require “racial domination” as the motivating factor to satisfy a charge of apartheid and the report does not demonstrate this requirement.

The publication heavily cites the ICERD and other human rights conventions. However, given the disputed legal status30 of the West Bank and that the overwhelming majority of the Palestinian population is not under Israeli jurisdiction or control, the relevance of human rights conventions is far from settled. Even if the ICERD is applicable in limited circumstances, it entitles a State to make distinctions between citizens and non-citizens and to enact measures to maintain “security of person and protection…against violence or bodily harm…by any individual group or institution.” Such measures are specifically excluded by the treaty from the definition of “racial discrimination”. If such measures do not constitute “racial discrimination,” they, of course, do not rise to the level of “apartheid” — a much more serious violation requiring a showing of “racial superiority or hatred” and practices implemented in apartheid South Africa.

The invocation of human rights law is also inapposite because under the traditional legal view, the laws of armed conflict (e.g. the Hague and Geneva Conventions) are considered the lex specialis, meaning that their application supersedes other bodies of law including human rights law.31

The study’s interpretation of both the laws of armed conflict and human rights law are nevertheless fatally flawed regardless of whether either or both bodies of law apply.32 Contrary to its claims, most rights are not absolute and their protection often involves the balancing of competing claims.33 The study’s authors selectively quote and notably omit provisions in both the laws of armed conflict and in human rights law related to security or other protections such as Article 4334 of the Hague Convention, Article 2735 of the Fourth Geneva Convention, Article 12(3)36 of the ICCPR, and Article 537 of the ICESCR.

The report patronizingly asserts that the Palestinians lack legal capacity to enter into agreements, and characterize the Oslo Accords as a violation of the Geneva Conventions. The study further suggests that the two-state solution is merely a pretext for Israel to establish a “racial enclave policy”.

Hypocritical proponents of the “apartheid” charge

Several leaders of the movement to equate Israel with apartheid South Africa actually exemplify the open and democratic nature of Israeli society. These individuals and organizations exercise their rights far in excess of what would be permitted in any other Middle East country (or in many Western countries). The irony and hypocrisy of this fact appears to be lost on these proponents of the apartheid canard.

Omar Barghouti

Omar Barghouti is a co-founder of the Palestinian Campaign for the Academic & Cultural Boycott of Israel (PCABI), which claims that the “entrenched system of racial discrimination and segregation against the Palestinian citizens of Israel…resembles the defunct apartheid system in South Africa.” PACBI calls for the “refrain from participation in any form of academic and cultural cooperation, collaboration or joint projects with Israeli institutions” and advocates for a “comprehensive boycott of Israeli institutions at the national and international levels.”

Barghouti is a frequent speaker on Israeli “apartheid” at NGO events (e.g. War on Want). Amnesty International timed its factually challenged November 2009 report, “Troubled Waters,” to coincide with Barghouti’s speaking tour in the US, linking water issues to “Israeli apartheid.”

Surprisingly, Barghouti is also a PhD student at Tel Aviv University – a fact that negates his charge of Israeli “apartheid,” and an affiliation seemingly incongruous with his boycott of “any form of academic and cultural cooperation” with Israel.

Adalah

As shown above, Adalah frequently levels the charge of apartheid and participated in an Israeli Apatheid Week event held in March 2010 at Al Quds University, entitled “on Apartheid as it is experienced by Palestinian citizens of Israel.” The organization, however, brings dozens of petitions each year in Israeli courts (often successful) and appears regularly at Knesset hearings (at least three times in the first three months of 2010 alone). This direct and repeated access to the Israeli courts and Israel’s policy-makers belies any claim of “apartheid” by Adalah.

Ignoring “apartheid” in Arab and Muslim countries

Despite the frequent invocation of “apartheid” slander, NGOs routinely ignore practices in the Arab and Muslim world that more closely resemble the practices of apartheid South Africa, nor do they label such practices “apartheid.” There is no call for “international accountability” to end such practices, nor lobbying for advisory opinions at the International Court of Justice to declare these countries guilty of apartheid.

Saudi Arabia’s system of gender segregation and religious discrimination is a notable example. Women are unable to vote, cannot hold a passport, are legally forbidden from driving cars, are barred from certain professions, and are subject to a dress code. It is illegal for women to marry non-Muslims and they are restricted and segregated in their use of public facilities. In addition to legally mandated gender discrimination, legally imposed religious discrimination bars non-Muslims from citizenship and prohibits adherents of other religions from practicing their beliefs. The possession of non-Muslim religious literature or symbols is also illegal.

Despite these practices, the NGOs referenced in this report have not campaigned for boycotts and sanctions against Saudi Arabia (some like HRW, have actually solicited funds from Saudi elites), do not lobby for UN investigations, nor have they filed cases around the world against Saudi leaders for committing crimes against humanity.

Images: South Africa

Images: Saudi Arabia Road Sign

Footnotes

NGO Monitor wishes to thank Dr. Avi Bell, Professor of Law at the University of San Diego School of Law and the Faculty of Law at Bar Ilan University, for his insightful comments on this piece.

M. Cherif Bassiouni, Daniel H. Derby,“Final Report on the Establishment of an International Criminal Court for the Implementation of the Apartheid Convention and Other Relevant International Instruments,” 9 Hofstra L. Rev. 523, 532 (1980).

Arab Parties represented in the Knesset are Hadash (Arab-Jewish coalition), Ra’am Ta’al, and the National Democratic Assembly.

In comparison, the two far-right Jewish nationalist parties (Ichud Leumi and HaBayit HaYehudi) have seven MKs.

This is not to say that discrimination does not exist in Israeli society; however, such issues confront every society. Eliminating societal discrimination is a major concern of the Israeli government and court system. Among the many initiatives undertaken to achieve this goal is the implementation of the NIS 3.9 billion Multiyear Development Plan for Israeli Arabs aimed at encouraging development in education, housing, employment, and economic growth. The government has instituted several affirmative action programs for Israeli Arabs and many legislative measures to address discrimination. The government actively prosecutes individuals inciting racial hatred. While there is much left to accomplish, to label these good faith initiatives “apartheid” is an affront to those who suffered under the South African apartheid regime.

Many NGOs actively advance the PLO’s specious legal claim that Gaza remains “occupied” after disengagement. This topic will be examined in a future installment of the International Law, Human Rights & NGOs series.

Those acts are:

(a) Denial to a member or members of a racial group or groups of the right to life and liberty of person:

(i) By murder of members of a racial group or groups;

(ii) By the infliction upon the members of a racial group or groups of serious bodily or

mental harm, by the infringement of their freedom or dignity, or by subjecting them to

torture or to cruel, inhuman or degrading treatment or punishment;

(iii) By arbitrary arrest and illegal imprisonment of the members of a racial group or

groups;

(b) Deliberate imposition on a racial group or groups of living conditions calculated to cause

its or their physical destruction in whole or in part;

(c) Any legislative measures and other measures calculated to prevent a racial group or

groups from participation in the political, social, economic and cultural life of the country and

the deliberate creation of conditions preventing the full development of such a group or

groups, in particular by denying to members of a racial group or groups basic human rights

and freedoms, including the right to work, the right to form recognized trade unions, the right

to education, the right to leave and to return to their country, the right to a nationality, the

right to freedom of movement and residence, the right to freedom of opinion and expression,

and the right to freedom of peaceful assembly and association;

d) Any measures including legislative measures, designed to divide the population along

racial lines by the creation of separate reserves and ghettos for the members of a racial group

or groups, the prohibition of mixed marriages among members of various racial groups, the

expropriation of landed property belonging to a racial group or groups or to members thereof;

(e) Exploitation of the labour of the members of a racial group or groups, in particular by

submitting them to forced labour;

(f) Persecution of organizations and persons, by depriving them of fundamental rights and

freedoms, because they oppose apartheid.

Remarks of Dr. Yohanan Manor, Jerusalem Center for Public Affairs, February 23, 2010.

Paragraph 1 states in full: For the purpose of this Statute, ‘crime against humanity’ means any of the

following acts when committed as part of a widespread or systematic attack

directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of

3, or other grounds that are universally recognized as impermissible under

international law, in connection with any act referred to in this paragraph

or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Arab and Islamic regimes succeeding in changing the court’s statute at the last minute to define Israeli settlement activity as an international crime while omitting terrorism as an offense. Other problems include the exclusion of Israeli judges due to the discriminatory regional bloc system at the UN; overarching powers to the Prosecutor and the barring of states from making reservations to the treaty– a fundamental right granted to states under international law. The last 2 issues were inserted into the statute as a result of intensive NGO lobbying by groups like Human Rights Watch and Amnesty International.

The right to family life as defined in the ICESCR makes no mention of having the right to live in a particular country. Article 10 simply states that “the widest possible protection and assistance should be accorded to the family.”

The claim by NGOs that the barrier has not reduced the number of bombings because it is incomplete is nonsensical. It is much easier to monitor a limited number of open areas than the entire area where the barrier now stands.

Remarks of Former Israeli Supreme Court President, Aharon Barak at Brandeis University International Center for Ethics, Justice and Public Life Symposium on Israel and International Law, January 4, 2010.

Sfard was also a “witness” at the March 2010 Russell Tribunal. The tribunal, established by anti-Israel ideologues including Pierre Galand and John Dugard, is a kangaroo court rooted in Marxist ideology putting Israel and its allies “on trial” for international crimes.

A similar document was issued by the Palestinian BDS movement in advance of the 2009 Durban II conference.

M. Cherif Bassiouni, Daniel H. Derby,“Final Report on the Establishment of an International Criminal Court for the Implementation of the Apartheid Convention and Other Relevant International Instruments,” 9 Hofstra L. Rev. 523, 532 (1980).

See, e.g., ICCPR Art. 2(1) (“individuals within its territory and subject to its jurisdiction”).

See Advisory Opinion on the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226 at 240 (“whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself”); remarks of Yoram Dinstein, ‘Securing Compliance with IHL: The Promise and Limits of Contemporary Enforcement Mechanisms’, International Conference of The Minerva Center for Human Rights, The Hebrew University of Jerusalem and The International Committee of the Red Cross (ICRC), November 22, 2009.

Article 43 of the 1907 Hague Convention commands an occupying power “shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”

Art. 27 of the 1949 Fourth Geneva Convention notes that “the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.” (emphasis added)

Article 12(3) of the International Covenant on Civil and Political Rights explicitly allows for the restrictions related to movement that are “necessary to protect national security, public order (ordre pulbic), public health or morals or the rights and freedoms of others . . .”

Article 5(1) of the International Covenant on Economic, Social, and Cultural Rights mandates that “Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein . . .”